Is There Anything to Gain From Ellen Pao’s Loss?

Proving sex discrimination in the workplace is near impossible, even for the highest-powered women in corporate America. So what will it take to effect change?

I spend a lot of time, when I’m crashing out after a long work day, watching and rewatching bad criminal justice dramas. (Current status: season three of Crossing Jordan, if you really want to know what level of bad I’m talking about.) 

There’s something satisfying about police procedurals and courtroom dramas and the like. Ninety-nine percent of the time, the right bad guy gets caught, the system works, and it’s all neatly wrapped up in a 42-minute show dotted with a little bit of interpersonal drama and will-they-won’t-they sexual tension. That’s why even people like me, who pretty much want to burn the existing criminal legal system to the ground and start over, find them compelling. 

The real world, of course, is much, much messier. 

Take, for example, the Ellen Pao case. Pao sued her former employer, Kleiner Perkins, one of Silicon Valley’s biggest and most famed venture-capital firms, for sex discrimination, arguing that she’d been discriminated against, denied promotion, and eventually fired when she complained. A jury found for Kleiner Perkins, ultimately ruling that it was Pao who had held herself back. (Cue Lean In references.) 

The Pao suit drew reams of coverage from Silicon Valley media, major news outlets, and of course, feminist publications. The trial dragged out and rehashed details of Pao’s time at Kleiner Perkins, digging into seemingly minor incidents to decide whether Pao had “a female chip on her shoulder” (didn’t know shoulder-chips had genders, but hey) or whether Kleiner Perkins was “a boys club” where women were not invited to events because they “kill the buzz.” 

As many people have noted, whether Pao won or lost, her lawsuit was successful in drawing a lot of attention to the problem of sexism in Silicon Valley. For a wealthy and powerful woman like Pao, who is currently the interim CEO at Reddit, to take a very public risk by suing may have been what the industry needed. 

And indeed, it often takes a wealthy and powerful woman to file such a lawsuit in the first place. In Dukes v. Walmart, the Supreme Court ruled in 2011 that the women of Walmart could not come together as a class to sue the company for sex discrimination, which made it much harder for women without Pao’s resources to wage such a fight. Marcia D. Greenberger of the National Women’s Law Center explained why class action suits were such a crucial tool, when she wrote,  “They allow large groups of people to band together to challenge system-wide discrimination, and they help workers surmount significant barriers—such as sheer expense and the fear of employer retaliation—that would discourage them from bringing an individual claim.” 

By making it harder to file a class action suit, the court also made it easier for companies to beat individual suits. Pao’s case is instructive. Ultimately, Kleiner Perkins didn’t have to answer for why it had so few women in its upper ranks, and the industry as a whole didn’t have to answer for why it is so heavily dominated by men. All they had to do was make the jury question whether one woman really deserved to be promoted. In a class action suit, or indeed any other form of organized pushback against sexism, the power comes not just from an individual horror story, but story after story with the same details, woman after woman passed over for promotion, banned from work parties, talked over at meetings, her ideas ignored. 

As Susie Cagle pointed out at the Guardian, “U.S. employment discrimination law is rooted in Title VII, the 1964 Civil Rights Act, which was passed in a time of open and obvious racial and gender bias and harassment. Successful gender discrimination lawsuits have drawn upon clear expressions of such bigotry: In Price Waterhouse v. Hopkins, in 1989, an employer told an ‘aggressive’ woman she needed to be ‘more feminine’ in order to earn a promotion. But stereotypes and implicit bias can be tricky in trial situations that privilege such conspicuous evidence.” 

In a world where we understand sexism and racism to be made up of individual insults and personal racist and sexist beliefs, it will remain difficult to win individual lawsuits like Pao’s. Today’s sexism rarely has a smoking gun or leaves behind forensic evidence; instead, it happens in a million different ways each day, in a million tiny incidents that can look accidental, that have perfectly rational explanations. We have to understand sexism not as a series of incidents that result in hurt feelings but as a system that exists to consolidate power in the hands of those who already have it. 

In this way, we should see that laws banning discrimination are not sufficient (though certainly, as we look at Indiana’s “religious freedom” act, they remain necessary). We should remember that fights against employment discrimination are not separate from fights against sexist abuses across the spectrum, that the devaluation of women’s work is deeply connected to the devaluation of women’s bodies and autonomy, even our very lives. And that the solutions advocated for well-off women often don’t even work for them, let alone the women further down the class ladder. 

After all, something else was exposed during the Kleiner Perkins trial. Liz Gannes at Re/Code wrote, “The details exposed about how the elite venture capital world operates made me highly skeptical that these privileged people bring as much value to the world as they extract to spend on their endless private plane flights and $1 million salaries. After watching the trial every day, I now cannot imagine their clubby, like-attracts-like lifestyle lends itself to a whole heck of a lot of perspective.” 

Ultimately, as ever, we can’t count on the victories of a few well-placed women at the top to change the tech industry or society for the rest of us. We’re going to have to do some work ourselves.